State v. Smith

Berdon, J.,

dissenting. During voir dire, the defendant, Sean Smith, a black man charged with murder, attempted to ask a venireperson the following question: “How would you feel if a relative of yours, son, daughter, brother or sister ... expressed an intent to you that he [or she] wanted to marry a black person?” The state objected to the question on the ground that it was irrelevant, and the trial court sustained the state’s objection. I agree with the majority that the question on interracial marriage was, in fact, relevant and should have been allowed because it might have revealed latent racism.1 do not, however, agree with the majority’s dismissal of the defendant’s claim on the basis that it was within the trial court’s discretion to disallow this question.

Early on, the United States Supreme Court made clear that questions aimed at disclosing prejudice “of a serious character” must be allowed by the trial court. Aldridge v. United States, 283 U.S. 308, 313, 51 S. Ct. 470, 75 L. Ed. 1054 (1931). Subsequently, the court unanimously held that, to assure a black defendant a fair trial, the fourteenth amendment requires that the *24defendant be allowed to question prospective jurors to determine whether they are racially prejudiced. Ham v. South Carolina, 409 U.S. 524, 527, 93 S. Ct. 848, 35 L. Ed. 2d 46 (1973). In Ham, Justice Marshall reminded us “that the right to an impartial jury carries with it the concomitant right to take reasonable steps designed to insure that the jury is impartial. A variety of techniques is available to serve this end . . . but perhaps the most important of these is the jury challenge. . . . Indeed, the first Mr. Justice Harlan, speaking for a unanimous Court, thought that the right to challenge was ‘one of the most important of the rights secured to the accused’ and that ‘[a]ny system for the empanelling of a jury that [prevents] or embarrasses the full, unrestricted exercise by the accused of that right, must be condemned.’ . . . Of course, the right to challenge has little meaning if it is unaccompanied by the right to ask relevant questions on voir dire upon which the challenge for cause can be predicated. . . . It is for this reason that the Court has held that ‘[preservation of the opportunity to prove actual bias is a guarantee of a defendant’s right to an impartial jury’ . . . and that the Court has reversed criminal convictions when the right to query on voir dire has been unreasonably infringed.” (Citations omitted.) Id., 532-33 (Marshall, J., concurring in part and dissenting in part.)

Our own state constitution affords even greater protection by providing: “In all civil and criminal actions tried by a jury, the parties shall have the right to challenge jurors peremptorily. . . . The right to question each juror individually by counsel shall be inviolate.”2 *25Conn. Const., amend IY. The constitutional right to the individual voir dire is bolstered by General Statutes § 54-82f, which provides, in part: “In any criminal action tried before a jury, either party shall have the right to examine, personally or by his counsel, each juror outside the presence of other prospective jurors as to his qualifications to sit as a juror in the action . . . .”3 “Discrimination on the basis of race is a subject which in the examination of jurors the court must allow if requested by a party. . . . ‘[W]e cannot be blind to the fact that there may still be some who are biased against the Negro race’ . . . .” (Citations omitted.) State v. Marsh, 168 Conn. 520, 522, 362 A.2d 523 (1975). Therefore, under our state constitution and § 54-82f, the accused enjoys the right to question each prospective juror individually on racial prejudice.

In view of federal and state constitutional law and § 54-82f, and the majority’s recognition that the interracial marriage question was a relevant question to ferret out racial prejudice, I am unable to understand the majority’s conclusion that forbidding the question was within the discretion of the trial court. The majority apparently supports this conclusion on the basis that the trial court allowed the defendant to ask the *26venirepersons a “multitude of other questions pertaining to potential racial prejudice . . . .” A review of the transcript, however, reveals that the trial court did not, in fact, consider the interracial marriage question to be cumulative. Before asking this question, the defendant asked only seven short prior questions, all of which laid a foundation for the interracial marriage question.4 After the trial court disallowed the interracial marriage question, it allowed the defendant to ask the prospective juror seven additional questions relative to race.5

*27It is clear to me that the trial court disallowed the interracial marriage question, not because the defendant had an ample opportunity to explore this sensitive area, but exclusively on the basis that the question was not relevant, which, of course, is contrary to the opinion of this court. Notwithstanding this, the majority affirms the trial court’s ruling on the basis of the “broad *28discretion” with which the trial court is vested in determining the extent of the voir dire examination. One case that the majority cites espousing this proposition is State v. Dolphin, 203 Conn. 506, 511-12, 525 A.2d 509 (1987). In Dolphin, the trial court refused to allow either counsel to question individually the venirepersons on whether they would give more or less credibility to a police officer’s testimony solely on the basis of his or her occupation. Although acknowledging the abuse of discretion standard of review, the court in Dolphin reversed the trial court and ordered a new trial because “[t]he exercise of the [trial] court’s discretion, however, must be tempered to comport with the goals of the voir dire examination. . . . ‘[T]he court should grant such latitude as is reasonably necessary to fairly accomplish the purposes of the voir dire. Clearly, therefore, if there is any likelihood that some prejudice is in the juror’s mind which will even subconsciously affect his decision of that case, the party who may be adversely affected should be permitted questions designed to uncover that prejudice. This is particularly true with reference to the defendant in the criminal case.’ State v. Higgs, [143 Conn. 138, 142, 120 A.2d 152 (1956)].” (Emphasis added.) State v. Dolphin, supra, 512. In the present case, the trial court’s ruling was even more egregious because the question the defendant sought to ask was aimed at uncovering racial prejudice, something that cannot be tolerated in a juror.

Furthermore, the trial court compounded the harm of its improper ruling because it made the ruling prospective.6 So, even if it was the only question defense counsel asked, the trial court would not have *29allowed it. In Higgs, this court found that the trial court’s exclusion of questions on racial prejudice was not harmless, as the state had contended, because by the trial court’s “repeated rulings excluding this line of questions and by its admonition of counsel, the court made it clear that it would not tolerate the propounding of such questions to any of the [venirepersons]. Consequently, the defendant was precluded from following this line of inquiry with all of the jurors who were selected to serve.” State v. Higgs, supra, 144.

What is also troubling to me is the majority’s implicit conclusion that the trial court may substitute its judgment for that of counsel by disallowing a relevant voir dire question, as long as the court allows other questions pertaining to the same subject matter. That, however, improperly injects the trial judge into an area constitutionally reserved for the state’s attorney and the defendant and his or her counsel. Allowing trial courts to intrude on counsels’ terrain frustrates both the immediate purposes of individual voir dire and the ultimate goal of achieving a fair and impartial jury. Examination of jurors on voir dire has a twofold purpose; it permits the trial court to determine whether the prospective juror is qualified to serve and it aids the parties in exercising their rights to peremptory challenges. State v. Dolphin, supra, 512. Although the defendant is not entitled to ask an unlimited number of questions on the topic, if the question is relevant, it seems to me that it must be allowed or, at least, not be banned for all upcoming venirepersons as the trial court did in this case.7

*30Racial prejudice and bigotry unfortunately are still prevalent in our society and they are facts to which we cannot close our eyes and pretend that they do not exist. It is, at times, hard to detect. It would be a rare instance indeed where a person would, on voir dire, admit in front of a judge and counsel that he or she is prejudiced in answer to a direct question. Counsel must be allowed to make inquiry through indirect questions that are aimed at revealing latent prejudice. Although a negative response to the interracial marriage question would not necessarily be a per se indication of racial prejudice, the answer to such a question would reveal information that would allow counsel for the party to explore adequately the subject. “Only then could [the defendant] intelligently challenge for cause or exercise his right of peremptory challenge.” State v. Rogers, 197 Conn. 314, 319, 497 A.2d 387 (1985).

The importance of allowing such a question is underscored by a recent article in the New York Times. The article reported that, according to the General Social Survey,8 “66 percent of whites said they would oppose a close relative’s marrying a black person” and that 20 percent of white persons “still believe interracial marriage should be illegal.” New York Times, Dec. 2, 1991, at Al, B6, col. 1. Doctor Richard D. Alba, chairman of the sociology department at the State University of New York at Albany, and a specialist in ethnic intermarriage and race relations, stated in the New *31York Times article that a white person’s view on interracial marriage “ ‘is like the tip of the iceberg’ . . . . ‘It is the visible expression of a host of attitudes and informal contacts that are otherwise hard to measure. Whites have difficulty accepting blacks as neighbors and co-workers, and all the more as members of the family.’ ” Id.

Even if we were somehow able to assure that blacks would be represented on the jury in the same proportion as those in the community,9 blacks are still a minority. Fairness, and the perception of fairness, require that black defendants be given great latitude in uncovering racial bigotry. Unfortunately, “[rjacial prejudice is a cultural malady that has shaped our history as a nation. It is a cancer of the mind and spirit which breeds as prolifically in the industrial cities of the North as in the rural towns of the South.” Ross v. Massachusetts, 414 U.S. 1080, 1085, 94 S. Ct. 599, 38 L. Ed. 2d 486 (1973) (Marshall, J., dissenting from denial of certiorari). Our courts must be sensitive to the problem of racial bigotry that may exist in the administration of our judicial system; otherwise our courts will not be courts of justice. Surely, the majority’s ruling today does not enhance this sensitivity.

Although I have not commented on the remaining issues presented in this appeal, I do not wish to imply that I concur with the majority on these issues. I do not address the remaining issues because I would find that the defendant’s conviction should be reversed on this issue and that the case should be remanded for a new trial. Accordingly, I dissent.

See discussion, infra, on New York Times article that examines how reaction to interracial marriages by whites may reveal latent prejudices against blacks.

The fourth amendment to the Connecticut constitution provides: “Section 19 of article first of the constitution is amended to read as follows:

“The right of trial by jury shall remain inviolate, the number of such jurors, which shall not be less than six, to be established by law; but no person shall, for a capital offense, be tried by a jury of less than twelve jurors without his consent. In all civil and criminal actions tried by a jury, the parties *25shall have the right to challenge jurors peremptorily, the number of such challenges to be established by law. The right to question each juror individually by counsel shall be inviolate.”

General Statutes § 54-82f provides: “In any criminal action tried before a jury, either party shall have the right to examine, personally or by his counsel, each juror outside the presence of other prospective jurors as to his qualifications to sit as a juror in the action, or as to his interest, if any, in the subject matter of the action, or as to his relations with the parties thereto. If the judge before whom the examination is held is of the opinion from the examination that any juror would be unable to render a fair and impartial verdict, the juror shall be excused by the judge from any further service upon the panel, or in the action, as the judge determines. The right of such examination shall not be abridged by requiring questions to be put to any juror in writing and submitted in advance of the commencement of said action.”

See fotenote 5, infra.

The questions asked of the venireperson on race were as follows:

“[Defense Counsel:] Now, the next area I want to get into with you is somewhat of an awkward area, it concerns race. It concerns that fact that Sean Smith is black and the job of any lawyer is to get into the issue of possible bias and prejudice of a juror, subconscious as well as conscious. That’s our job. It’s awkward. Do you work with any black people?

“[Venireperson:] Yes, I do.

“Q. Do you have any black supervisors?

“A. Currently, no.

“Q. Have you ever been involved in a situation where there were quotas and things of that nature, where maybe a black has been promoted over you because of some type of a quota system?

“A. No.

“Q. Do you have any friends that are blacks, to one degree or another?

“A. Acquaintances, yeah.

“Q. Do you have lunch with them? Maybe you don’t have lunch with any people.

“A. I usually don’t go to lunch. I work with people daily, black people daily.

“Q. Have you ever had, that you could think of, any negative experiences with black people that somehow might affect you?

“A. No.

“Q. Either at school, work, any type of situation?

“A. No.

“Q. Now, the next area is again very awkward. It’s a sensitive area. How would you feel if a relative of yours, son, daughter, brother or sister—

“Mr. Vitale [State’s Attorney]: I object to this question.

“The Court: Finish the question.

By Mr. Mandanici:

“Q. —expressed an intent to you that he wanted to marry a black person?

*27“Mr. Vitale: I object [to] that as completely irrelevant.

“The Court: Have you finished your question?

“Mr. Mandanici: Yes, your Honor.

“The Court: Objection sustained.

“Mr. Mandanici: May I have an exception, your Honor?

“The Court: Yes.

By Mr. Mandanici:

“Q. Do you feel blacks are different in any way?

“A. Other than color of skin, no.

“Q. Right, other than color of skin. Can you foresee any situation where you would look at a black person and make a decision that would be different or having a feeling about that person merely because they’re black?

“A. I would try not to. I mean, many people have underlying prejudices.

“Q. Subconscious?

“A. Right.

“Q. That’s exactly what I’m trying to get at. Do you know of any situation where in your life where you had an idea, an opinion, about a situation that was based on the fact that this person was a black person, the person you’re dealing with?

“A. I’m sure in my younger days I wasn’t as educated or as aware as I am now. I imagine I was probably more apt to be prejudiced at that time. Nothing in particular, just a general way I grew up or neighborhood or whatever.

“Q. What would cause concern for any lawyer, if this was a close case, what would cause any lawyer’s concern is the fact that there is some subconscious bias or prejudice you have against blacks that might be the thing that subconsciously tips the scales. Have you ever had, do you recall a situation where you made a decision where possibly that decision was based on the fact that the person was black?

“A. No.

“Q. Do you feel over the years you’ve become more aware of your own subconscious feelings?

“A. Yes.

“Q. Would you in this case at the end of the case sort of make a checklist and see whether in fact possibly those earlier feelings you had in your life might affect you in this case, do you think you would be able to do that?

“A. Yes.”

The following colloquy occurred between defense counsel and the trial court during voir dire of the next venireperson:

“Mr. Mandanici: Your Honor . . . my question I didn’t ask this juror that I asked the first prospective juror about the son or daughter marrying a black, I gathered your Honor would sustain the objection.

*29“The Court: That’s correct.

“Mr. Mandanici: And if I asked any other jurors your Honor’s ruling would be the same.

“The Court: That’s correct. . . .

“Mr. Mandanici: Might I have a continuing objection?”

Furthermore, the defendant’s claim must be reviewed from the perspective that the evidence against the defendant was weak. The jury first reported that: “We are unable to reach a unanimous decision on the mur*30der charge. Do we move to manslaughter one at this point?” The trial court answered that they could deliberate on the charges in any sequence they wished. On the following day, the jury sent another note to the court: “The jury is unable to reach a unanimous decision. No further progress is anticipated.” Shortly after the court read its version of the Chip Smith charge; State v. Smith, 49 Conn. 376, 386 (1881); the jury returned a verdict of guilty of murder.

The General Social Survey is an annual polling of 1500 American adults of all races directed by Dr. Tom W. Smith, a researcher on social issues at the National Opinion Research Center at the University of Chicago. New York Times, Dec. 2, 1991, at A1, B6, col. 1.

Of course, the composition of the individual jury panel drawn from the jury array amounts to “the luck of the draw.” State v. Tillman, 220 Conn. 487, 510, 600 A.2d 738 (1991) (Berdon, J., dissenting).